OGUNSANYA OLUWASEYI V THE STATE (2018)

OGUNSANYA OLUWASEYI v. THE STATE

In The Supreme Court of Nigeria

On Friday, the 14th day of December, 2018

SC.610/2016

 

JUSTICES

IBRAHIM TANKO MUHAMMAD    Justice of The Supreme Court of Nigeria

OLUKAYODE ARIWOOLA    Justice of The Supreme Court of Nigeria

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN    Justice of The Supreme Court of Nigeria

AMINA ADAMU AUGIE    Justice of The Supreme Court of Nigeria

SIDI DAUDA BAGE    Justice of The Supreme Court of Nigeria

Between

 

OGUNSANYA OLUWASEYI  Appellant(s)

AND

THE STATE  Respondent(s)

 

SIDI DAUDA BAGE, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal Ibadan Division (Court below),(Lower Court), in Criminal appeal No.CA.1B/413C/2013 delivered on 17th May, 2016 by which said   judgment, the Court below affirmed the conviction and sentence passed on the Appellant by the High Court of Ogun State sitting in Abeokuta.

SUMMARY OF FACTS
The brief facts of the appeal are that, on the 17th day of January, 2007, the complainant; one Aminat Olufade (PW. I) took a commercial motorcycle to take her home after closing from her place of business at about 7.30pm. Around Printing Corporation in Abeokuta, as the motorcycle slowed down, another motorcycle suddenly emerged beside her and the rider of that motorcycle forcefully snatched her bag and sped away. According to the complainant, she started shouting for help and asked the motorcycle rider that took her to ride fast after the other motorcycle; but they lost him. According to the complainant (PW.1), because of the conduct of the motorcycle rider that took her, she suspected his complicity

 

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in the whole incident, and therefore sought the help of Policemen attached to the Central Bank of Nigeria, who then immediately arrested him.

According to the complainant (PW.1) about two weeks after, MTN gave her an itemized bill which contained the list of calls, duration of such calls and the numbers called. That, upon checking the list, she discovered that 15 minutes after the incident, calls were made from her phone stolen from her, and that a call to one of the numbers went through and was picked by a lady. That she then fixed an appointment with the lady, and also reported to the police who assigned a police-woman to accompany her. The lady was arrested. The lady told her that it was one Seyi (Appellant) who called her with the complainant’s phone. The Appellant was then arrested. The complainant also testified that, her bag which was snatched contained some MTN, GLO, V-Mobile lines as well as recharge cards for MTN, GLO, MTS, Multilinks and V-Mobile. That, it also contained some phones such as Nokia 1100, Sagem MYX2, Federal Polytechnic Ilaro Student Identity Card and National Identity card and a bunch of keys.

The Appellant denied the charge. At the trial, the

 

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prosecution called three witnesses who testified as PW.1, PW.2 and PW.3 respectively. The prosecution also tendered the extra-judicial statements of the Appellant in evidence and the MTN itemized Bill, and were admitted as Exhibits P, P1, P10 and P11 respectively. The Appellant testified in his defense.

The trial Court in its judgment convicted the Appellant and sentenced him to 21 years imprisonment, while the second accused was discharged and acquitted.

The Appellant having not been satisfied with the judgment of the trial Court, appealed to the Court below. After hearing the appeal, the Lower Court dismissed the appeal for lack of merit. The judgment of the Lower Court is contained at pages 157-161 of the Record of Appeal.

This appeal is against that judgment. In accordance with the Rules of this Court, briefs were filed and exchanged by parties. The Appellant’s brief was settled by Ahmed Akanbi Esq, and filed on the 2nd September, 2016. He also filed a reply brief on 9th January, 2017 but deemed filed on 4th October, 2018.

In the Appellant’s Brief of Argument, counsel formulated two (2) issues for determination to wit:

 

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  1. Whether having regard to the Judgment of the lower Court in Appeal No: CA/I/305/2011, the lower Court has the jurisdiction to affirm the conviction of the Appellant for the offence of the receipt of stolen goods contrary to Section 5 of the Robbery and Firearms (Special Provisions) Act.
    ii. Whether having regard to the circumstances of this appeal, the Court of Appeal was right in affirming the conviction of the Appellant notwithstanding the fact that the Respondent did not establish the offence of robbery, more so having regard to the lack of compellability of the Appellant’s extra-judicial statement which were intrinsically contradictory.”The Respondent’s Brief of Argument wherein, it incorporated a Notice of Preliminary Objection, which was filed on 8th December, 2016 but deemed filed on 4th October, 2018 was settled by Dr. Olumide Ayeni the Attorney General of Ogun State, posited two issues for determination as follows:
    “I. Whether the learned Justices of the Court of Appeal acted correctly and with the requisite jurisdiction in affirming the conviction of the Appellant by the High Court of Ogun State of the offence of receiving stolen

 

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goods contrary to Section 5 Robbery and Firearms (Special Provisions) Act Cap. R11 LFN, 2004 in the entire circumstances before them.
ii. Whether the learned Justices of the Court of Appeal acted correctly when they affirmed the Judgment of the High Court of Ogun State against the Appellant having regard to the entire material and evidence available establishing the guilt of the Appellant beyond reasonable doubt.”

After examining the issues formulated by Counsel, this appeal will be determined on a lone issue, which is reframed as follows:
“Whether the lower Court ought to have considered its previous decision in appeal No.CA/1305/2011 in convicting the Appellant having found that his confessional statement was direct, clear, and voluntary.”

Counsel for the Respondent, the learned Attorney General, filed a Notice of Preliminary objection seeking the Court to dismiss this appeal on the following grounds;
“(I) The Appeal is in violation of Order 2 Rule 32 Supreme Court Rules, (as Amended) in that it agitates matters relating to concurrent findings of the High Court and Lower Court of Appeal without prior leave

 

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sought or obtained from either the Lower Court of Appeal or this Honourable Court.
(ii) The Appeal and its three (3) Grounds are not agitated on law alone but on mixed law and fact outside the ambit of Section 233 (2) Constitution of the Federal Republic of Nigeria, 1999 (as Amended) and in violation of Section 233 (3) thereof.”

Learned Counsel for the Appellant responded to the said Preliminary Objection in his Reply Brief deemed properly filed on the 4th October, 2018.

Learned Counsel for the respondent cited the Provision of Order 2 Rule 32 of the Supreme Court Rules as follows;
“Where, in an appeal to the Court from the Court below, the Court below affirmed the findings of facts of the Court of First instance, any application to the Court in pursuance of its jurisdiction under Section 233 (3) of the Constitution for leave to appeal shall be granted only in exceptional circumstances.”

Learned Counsel went further to produce the provision of Section 233 (2) and (3) of the Constitution as follows;
“(i) An Appeal shall lie from decisions of Court of Appeal to the Supreme Court as of right in the following cases: –
(a) where the ground of appeal involves

 

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questions of law alone, decisions in any civil or criminal proceedings before the Court of Appeal;
(b) decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution,
(c) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be, contravened in relation to any person;
(d) decision in any criminal proceedings in which any person has been sentenced to death by the Court of Appeal or in which the Court of Appeal has affirmed a sentence of death imposed by any other Court;
(e) decisions on any question-
(i) whether any person has been validly elected to the office of President or Vice President under the Constitution.
(ii) whether the term of office of President or Vice President has ceased.
(iii) whether the office of President or Vice has become vacant; and
(c) Such other cases that may be prescribed by an act of the National Assembly.
Section 233 (3) provides thus;
“Subject to the provisions of Subsection (2) of this

 

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section, an appeal shall lie from the decisions of the Court of Appeal to the Supreme Court with the leave of the Court of Appeal or the Supreme Court.”

Learned counsel for the Respondent submitted that the factors to be considered before this Court can interfere with the concurrent findings of the lower Courts referred to in the above provisions were absent from this Appeal. Counsel referred us to ODEH VS FEDERAL REPUBLIC OF NIGERIA (2008) 13 NWLR (Pt.1103) 1, 35A-C; LOCKNAN & ANOR VS THE STATE (1972) 5 SC 22; UDEH VS THE STATE (2001) 2 ACLR 356, 360; (1999) 7 NWLR (Pt.609)1.

Counsel further submitted that this Appeal is a violation of the combined effect of Section 233 (2) and (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) having been lodged on grounds of mixed law and fact and should be held incompetent. Counsel submitted further that this position was trite regardless of whether the ground is cast as one of jurisdiction. He referred to DAIRO VS UNION BANK OF NIGERIA PLC (2007) 16 NWLR (Pt.1059) 99, 134A-B; OKETADE VS ADEWUNMI & 4 ORS (2010) 8 NWLR (Pt.1195) 63 at page 78 paragraphs F-G; JOV VS DOM (1999) 9 NWLR (Pt.520) page 533 at

 

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547, B-C; SAPO & ANOR VS SUNMONU (2010) 11 NWLR (Pt.1205) 374 at 393, C-G; OWIE VS IGHIWI (2005) 5 NWLR (Pt.917) 184 at 223, G-H.

In response to the Notice of Preliminary Objection, counsel for the Appellant, in the Appellant’s Reply Brief, submitted that the Respondent misunderstood the grounds of Appeal as contained in the Notice of Appeal, as all three grounds are premised on law and in tandem with the provisions of Section 233 (2) (a) of the Constitution and as such no leave is required.

Appellant’s counsel submitted further that the criteria for distinguishing between a ground of law and that of fact poses some difficulty which has been addressed by this Honourable Court in the case of C.C.C.T.C.S. LTD VS EKPO (2008) 6 NWLR (Pt.1083) Page 409 paragraphs E-H.

Counsel submitted that the Respondent clearly made no reference to the Appellant’s Notice of Appeal and that that is the necessary for this Honourable Court to do in considering the merit or otherwise of the Respondent’s Objection.

Counsel conceded that there was a need generally, for a party raising an issue on appeal for the first time to seek

 

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leave, he referred to SAKATI VS BAKO (2015) 14 NWLR (Pt.1480) 531 at 563 paragraphs E-G.

I have carefully examined the argument above and I agree with the position of the Learned Counsel for the Appellant that the issue of jurisdiction can be raised at any stage for the first time on appeal before this Court without seeking leave. See NUHU VS OGELE (2003) 18 NWLR pt.852.

On the second ground of appeal which challenges the issue of evidence, I have also agreed with the Learned Counsel for the Appellant that where the ground of appeal complains that the Judgment of the trial Court was not supported by evidence and that, the ingredients of the offence were not proved, that issue is of law and not an issue of fact or mixed law and fact.
It is a trite position of the law that a ground of appeal raising the issue of law alone needs no leave of the Court before filing. See CHROME AIR SERVICES LTD vs FIDELITY BANK (2008) EJSC at 158.

On the whole, the Preliminary Objection filed by the Respondent’s Counsel therefore fails and it is hereby overruled.

CONSIDERATION OF THE APPEAL
On the lone issue for the resolution of this appeal, Learned

 

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Counsel for the Appellant argued that the Learned Justices of the Court of Appeal respectively were bereft of the requisite jurisdiction to have affirmed the conviction of the Appellant, Learned Counsel submitted that the same division of the Lower Court in appeal no. CA/I/305/2011 between HARUNA RAFIU VS THE STATE mitigated the sentence of the said Haruna who was charged before the High Court for the offence of Armed Robbery.

Learned Counsel argued that the Appellant in this case was convicted for receiving the goods stolen from the said Haruna Rafiu who was convicted by the same Lower Court for stealing and not Armed Robbery.

Learned Counsel contended that, for the Appellant to be convicted for the offence of receiving stolen property under Section 5 of the Robbery and Firearms (Special Provision Act), the goods received must have been obtained by means of any act constituting an offence under the Robbery and Firearms (Special Provisions) Act.

Learned Counsel argued that the consequence and purport of the Court of Appeal’s decision in HARUNA RAFIU VS THE STATE ought to have been applied to the sentencing and conviction of the Appellant by the Court of Appeal which

 

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if duly applied would have led to the Appellant being sentenced for the offence of receipt of stolen goods and not receipt of goods under the Robbery and Firearms (Special Provisions) Act. He referred to the case of NWACHUKWU VS THE STATE (1986) 2 NWLR (Pt.25) 765; BANJO vs THE STATE (2013) 16 NWLR (Pt.138) at 469 paragraphs B-C.

Learned Counsel submitted that the Lower Court should have taken judicial notice of the decision under reference in arriving at its decision. Learned counsel cited SPDC (NIG) LTD VS DINO (2007) All FWLR 9(Pt.362) 1942 at 1957 AND GLOBAL SOAP & DETERGENT IND. LTD vs NOTABLE (2009) All FWLR (Pt.407) 1 at 134 SC; MILITARY GOVERNOR OF LAGOS STATE VS ADEYIGA (2012) 5 NWLR (Pt.1293) 291 at 323 SC’

Learned Couse| opined that the erstwhile counsel to the Appellant had in his submissions before the Lower Court brought to the knowledge of the Court, the judgment of the Lower Court in HARUNA RAFIU vs THE STATE and the Court ought to have taken judicial notice of same as it forms part of proceedings before the Court.

Learned Counsel contended that, the Lower Court having held in HARUNA RAFIU VS THE STATE that the properties

 

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of the Complainant was not obtained by Robbery, the Appellant’s sentence and conviction should also have been reduced accordingly to correlate with the punishment for the receipt of stolen items arising from the offence of stealing and not for the offence of receipt of stolen goods arising from the offence of Armed Robbery.

On the issue of evidence, Learned Counsel submitted that what the Trial Court relied on in convicting the Appellant were mere assumptions devoid of any factual basis. The fact that the goods in question were found in the possession of the Appellant, was not evidence whatsoever in support of guilty knowledge.

Learned Counsel argued that no evidence was canvassed by the prosecution in support of any of the ingredients, it is not in doubt that the Appellant runs a telephone services and repair shop and the goods found in his possession could as well have been received in the line of legitimate business.

Counsel submitted that the Respondent ought to prove beyond reasonable doubt the fact that the Appellant had guilty knowledge that the items were stolen, and that the Respondent neglected and/or refused to do this. Counsel

 

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submitted that the necessary ingredients in proving guilty knowledge were not before the Court. He referred to NJOVENS & 3 ORS VS THE STATE (1973) 5 SC 12; BASSEY ASUQUO EKPO VS THE STATE (2003) 17 NWLR (Pt.849) 392 at 394.

Learned Counsel submitted that the Court below ought to have considered the other extra-judicial statements of the Appellant, as contained in exhibits P and P10, which according to counsel exonerated the Appellant. Counsel further submitted that the lower Court countenanced only exhibit P11 which was incriminating and controversial.

Counsel submitted that neither of the statements made by the Appellant should have been relied on as all were unreliable in the face of the contradictions contained therein. He referred us to JIMOH ISHOLA (A.K.A. IDIGBADERO’) VS THE STATE (1977) 2 FCA 156; YONGO VS COMMISSIONER OF POLICE (1990) 5 NWLR (Pt.148) 103 at 116; OLADEJO VS THE STATE (1987) 3 NWLR (Pt.61) 419 at 427 and UMANI VS THE STATE (1988) 1 NWLR (Pt.70) 274; (1988) 19 NSCC (Pt.) 137 at 141 – 142.

Appellant’s counsel submitted that even though the content of the third extra-judicial statement (exhibit P11) is

 

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confessional in nature and admitted without objection, the trial Court still had the duty to consider all defences available to the Appellant whether raised directly or remotely in the interest of justice and not use exhibit P11. He referred to AHMED VS NIGERIAN ARMY (2010) 1 NWLR (Pt. 1227) page 118-119, paragraphs H-C.

Counsel urged this Court to rest on the decisions in EYO VS THE STATE (2016) 7 NWLR (Pt.1510) page 192 paragraphs B-E; SHURUMO vs THE STATE (2010) 19 NWLR (Pt.1226) 73; MARTINS vs CO.P. (2005) 7 NWLR (Pt.925) 614; OMOKHAFE vs ESEKHOMO (1993) 8 NWLR (Pt.309) 58 and Section 22 of the Supreme Court Act and disturb the concurrent findings of the two lower Courts.

Learned Counsel submitted that it is crystal clear that the first two extra-judicial statements of the Appellant were not confessional as he did not admit receiving or buying the phones and recharge cards belonging to the Complainant.
Learned Counsel finally contended that although there were concurrent findings in respect of this appeal, it can rightly be argued that disallowing this appeal will occasion miscarriage of justice.

Learned Counsel urged this Court to allow the appeal and

 

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set aside the judgment of the Lower Court.

On the other hand, Olumide Ayeni Esq., Learned Counsel for the Respondent submitted that by Section 122 (4) of the Evidence Act, 2011, the Lower Court enjoys discretion whether or not to take judicial notice of matters in Section 122 thereof.

Learned Counsel contended that at nowhere did the Appellant in appeal No. CA/1/413/20/13 at the Lower Court invite the attention of the learned Justices to any such books or document beyond a perfunctory reference in the course of arguments in paragraph C6 of the Appellant’s Briefs.

Learned Counsel contended that it is axiomatic to exercise of jurisdiction by any Court that decisions are based on the material evidence and or facts placed before a Court and not otherwise.

Learned Counsel argued that in the respectful submission of the Respondent, there is no merit in substance concerning this issue as formulated in this appeal by the Appellant or cast in the mould of jurisdiction as the composite effect and wide con of Section 179 of the Criminal Procedure Law of Ogun State, 2006. Section 20, Court of Appeal Act, Cap C36, 2004, Sections 25 and 26 Supreme Court Act Cap S15, 2004.

 

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Learned Counsel contended that, the clear and trite position of the law has long been made clear by a long line of decisions of various Courts including the Supreme Court in the foregoing respect. He referred this Court to NWACHUKWU VS THE STATE (1986) 2 NWLR (Pt.25) 765 at 776-779 paragraphs F-F; R VS TYSON 11 WACA 90; R VS ADOKWU (1952) 20 NLR 103; THE QUEEN VS NWAGWOGWU (1962) 1 All NLR 294; OYEDIRAN VS REPUBLIC (1967) NMLR 122; SHOSIMBO VS THE STATE (1974) 10 SC 91 ; FARO VS INSPECTOR GENERAL OF POLICE (1964) All NLR 6; EFFIOM VS THE STATE (2003) 3 ACLR 192, 214; (1995) 1 NWLR (Pt.373) 507.

In the Appellant’s Reply Brief, counsel submitted that Respondent misunderstood the purport of the Appellant’s Brief of arguments on the submissions on judicial notice.

Counsel relied on the case of OSAFILE VS ODI (No.1)(1990)3 NWLR(Pt.137) 130 at 164 in submitting that the purport of the submissions regarding Appeal No. CA/I/305/2011; HARUNA RAFIU VS THE STATE contained in the Appellant’s Brief is that for justice to be done, the Appellant who was charged and convicted for the offence of receiving stolen property ought not be punished

 

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more than the person who actually stole the property.

Counsel urged this Honourable Court to take judicial notice of the judgment of the Court below in Appeal No. CA/I/305/2011; HARUNA RAFIU VS THE STATE as that is the only way that justice may be done to the Appellant.

Counsel urged this Honourable Court to find that the Appellant did not receive goods from the proceeds of robbery but stealing as evidenced in the judgment of the Court below hitherto referred to and the Appellant’s punishment should be commensurate.

Learned Counsel submitted that the point that is being made is that no issue of jurisdiction or lack of it, sufficient to vitiate the Lower Court’s judgment has been made out in this appeal which in any event is bereft of merit. Learned Counsel submit that all the issues raised at the trial were frontally, fully and painstakingly considered by the Learned Justices of the Court of Appeal.
Learned Counsel finally urged this Court to dismiss this appeal and affirm the judgment of the Lower Court.

Upon due consideration of the argument of Learned counsel as espoused above, I dare say that it is settled law by a long

 

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line of cases that a free, voluntary, direct and positive confessional statement is sufficient by itself, without corroboration, to warrant the conviction of an accused person provided always that the Court is satisfied with the truth of the confession. This, the Court can do, even if the accused resiles from it.
The Learned Trial Judge in his judgment at page 100 of the Record of Appeal stated as follows:
“Before I conclude, let me say something about the attempt made by the 3rd accused to resile from his confessional statement made at the state C.I.D, Eleweran, when (as DW.3 testifying in Chief) he said he was threatened and slapped by the Police. Exhibit P.11 was tendered without any objection from Defense Counsel, and it was admitted. It is settled that the proper time for taking objection to the admissibility of a confessional statement is at the time it was being tendered and not later… it is also settled that once a confessional statement is admitted in evidence, it becomes part of the case of the prosecution, the probative value of which the trial Judge is bound to consider … I hold that the attempts of the 3rd accused

 

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to resile from his confession as aforesaid is of no moment.”
The findings and conclusion of the Learned Trial Judge above was also affirmed by the Lower Court in its judgment at page 148 of the record as follows;
“let me support that position by affirming that, the law, which is now settled is (sic) that, a confessional statement which has been tested and proved to have been voluntarily made, is a relevant fact against the accused person who made it. If found to be direct and positive, it will be sufficient to ground a conviction. The fact that the accused person retracts or resiles from such statement will not render such statement inadmissible. Accordingly, where the accused wishes to rely on such denial as his defiance or part of his defense, he has to explain the inconsistency between his confessional statement which has been duly proved and admitted and his testimony before the Court.”
I think it will be useful at this stage to reproduce the portion of Appellant’s statement in exhibit P.10 copy from page 151 of the record.
“I know one Haruna Rafiu also known as Paso who use to come to my shop, who came to repair and sell

 

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handset to me also an Okada rider. Sometimes November 2006 Haruna Rafiu brought a Sagem MYX7 handset for sale and I bought it for N5,000.00 and after the following week he brought another Sagem MYX1 handset I bought it for N2,000.00. On February 6th, 2007 Haruna Rafiu came to my shop with a Sonics Ericson handset for sell and I collected it from him. I have not give him money for that because it has got fault and three handset he did not come with the charger. I did not know Haruna Rafiu as handset dealers any time he bring handset he always tell me that somebody gave him to sell, the time he use to bring those handset to me I did not know that he use to stole them. I don’t know that Haruna Rafiu use to snatch the handset from people. It was when I was arrested at Ibara Police Station that I know.”
It is clear from the decision of trial Judge that the Appellant knew the 1st accused (Haruna Rafiu) before his arrest for receiving the stolen goods. The said Haruna Rafiu was in the habit of selling handset to the Appellant with the story that other people gave him the handsets to sell. It is also not in doubt that the Appellant was an “Okada Rider.” There is also

 

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evidence that the said 1st Accused sold the handset without their chargers. It is also evident that the said 1st Accused was not in the business of selling handsets.
Those are the facts which support the findings of the learned trial Judge that any reasonable person in the circumstances would have perceived that the phones sold to the Appellant were not from a lawful source.
Furthermore, the Appellant has admitted in exhibit P11 which was made 4 days after Exhibit P.10 was made, that the said Haruna Rafiu sold him recharge cards and Sagem MYX2 to him. The said Haruna Rafiu told him that the items were worth N35,000.00 but the Appellant bought the items at N2,000.00.
From the foregoing, as I have stated earlier, as has been in a long line of cases by this Court, it is trite law that a free and voluntary confession of guilt made by an accused person, if it is direct and positive and is duly made and satisfactorily proved, is sufficient to warrant a conviction without any corroborative evidence as long as the Court is satisfied with the truth of the confession. See JIMOH YESUFU VS THE STATE (1976) 6 S.C 167, EDET OBOSI VS STATE (1965)

 

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N.M.L.R 119, AKPAN VS STATE (1992) 6 NMLR PT 248 439, KIM VS STATE (1992) 4 N.M.L.R (PT 233) 17, EDHIGERE VS STATE (1996) 8.

Having said this, I am convinced that the Prosecutor, at the trial Court had proved their case beyond reasonable doubt.
What is now the bone of contention is whether or not the Appellant should be convicted and sentenced for the offence of receiving goods which are the proceeds of armed robbery or receiving stolen goods in the light of the lower Court’s decision in Appeal No. CA/1305/2011.
I hold the view that the Lower Court ought to have taken judicial notice of its decision in HARUNA VS STATE appeal No. CA/1/305/2011 before confirming the sentence of the Appellant.
The Lower Court in that appeal held that the Prosecutor at the trial Court failed to prove the offence of robbery and proceeded to hold that the Complainant’s properties were not obtained by robbery, but merely stolen. The Court went further to state that the accused ought to be convicted under the criminal code for stealing and not for the offence of robbery under the Robbery and Firearms (Special Provision Act).
I have taken into consideration the facts that the

 

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Appellant herein was convicted for receiving the goods stolen by Haruna who was convicted by the Lower Court for stealing and not for Armed Robbery.
I agree with the Counsel for the Appellant that the consequence and purport of the decision of the Lower Court ought to have been applied to the sentencing and conviction of the Appellant, who would have been sentenced for the offence of receiving stolen goods, and not receiving goods under Robbery and Firearms Special Provision Act.
The Law is settled that this Court may, where the end of Justice will be properly met reduce the sentence imposed by the Trial Court where the Lower Court omits to appropriately apply its discretion in this regard. See OGIDI VS C.O.P (1960) 5 FSC 251 at 256-257; QUEEN VS EYO & ORS (1962) 1 All N.L.R 515 at 528-529, ADEYEYE & ANOR VS THE STATE (1968) All N.L.R 239 at 241; TSOFOLI VS C.O.P (1971) 7 N.S.C.0 330 at 332-333; ANI VS STATE (1996)5 N.W.L.R (pt.450) 624 at 629-630; OBISI VS CHIEF OF NAVAL STAFF (2002) 2 N.W.L.R (PT.751) 400 AT 417.
In view of the above therefore, this Court hereby reduces the sentence of the Appellant to 3 years imprisonment for

 

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receiving stolen property.

This appeal succeeds in part. However, from the record, the Appellant was convicted and sentenced by the Trial Court since the 30th of June 2011. Looking at that date, the Appellant has since served for more than the period of his punishment in custody. In the overall interest of Justice, it is the order of this Court that he be released and set free from the prison custody with immediate effect.

IBRAHIM TANKO MUHAMMAD, J.S.C.: I have had the privilege of reading before now, the judgment just delivered by my learned brother, Bage, JSC. I agree with my learned brother’s reasoning and conclusion that the appeal has some merit and should be allowed in part. I, too, allow the appeal in part. I abide by orders made in the lead judgment.

OLUKAYODE ARIWOOLA, J.S.C.: I had the privilege of reading in draft the lead judgment of my learned brother Bage, JSC just delivered. I agree entirely with the reasoning and conclusion that the appeal is meritorious but succeeds in part.
Appeal is allowed in part.
I too will order that the appellant be released from prison forthwith.

 

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KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: My learned brother, SIDI DAUDA BADE, JSC, obliged me with a draft of the Judgment just delivered. His Lordship has meticulously considered and ably resolved the issue in contention in this appeal.

I agree with him that the prosecution established beyond reasonable doubt that the appellant was found in possession of items that were proved to have been stolen. The appellant’s contention in this appeal is that the prosecution failed to prove guilty knowledge. The law is settled that guilty knowledge may be inferred from the surrounding circumstance such as:
(a) The manner of receipt or delivery of the goods allegedly stolen;
(b) The time of delivery
(c) The actions upon delivery and
(d) The price paid for the goods.
See: Okoroji Vs The State (2002)5 NWLR (Pt. 759) 21 @ 48 D-E; Ekpo Vs The State (2003) 17 NWLR (Pt.849) 392 @ 408 A-B.
At pages 151-153 of the record, the Court below reviewed the findings of the learned trial Judge and agreed with him, rightly in my view, that the following facts supported his finding as to the guilty knowledge of the appellant:

 

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  1. That from his statement, Exhibits P10 it was evident that he knew the 1st accused, Haruna Rafiu before his arrest;
    ii. That the 1st accused was in the habit of selling handsets to him with the story that they were given to him by other people to sell;
    iii. That the 1st Respondent used to sell the phones to him without their chargers;
    iv. That the appellant was an “Okada” rider and the 1st accused was not in the business of selling handsets;
    v. The appellant admitted in his statement, Exhibit P11 that the 1st accused sold some recharge cards and a Sagem MYX2 handset to him. These are some of the items reported stolen by the complainant.
    vi. That he paid much less than market value for the recharge cards.
    vii. The complainant was robbed on 17/1/2007 at about 7.30 p.m and the 1st accused brought the recharge cards and handset to him around 8. 30p.m the same day.
    On the basis of these facts the lower Court held at page 153 of the record:
    “On the above stated facts, I am of the view that the learned trial Judge was alive to his duty and therefore properly appraised the totality of the evidence before

 

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him. This findings are amply supported by the evidence. I therefore hold that the learned trial Judge was right when he convicted the Appellant on the charge preferred against him.”

Now, in paragraph C6 of the appellant’s brief of argument at page 116 of the record, learned counsel drew the Court’s attention to its declaration in CA/I/305/2011: Haruna Rafiu Vs The State delivered on 29/3/2012 wherein the judgment of the trial Court convicting and sentencing Haruna Rafiu (the 1st accused charged along with the appellant) to 21 years imprisonment for the offence of robbery was set aside and imposed in its place a conviction and sentence of 3 years imprisonment for the offence of stealing.

The appeal arose from the same judgment as the one appealed against in the instant appeal. The appellant herein was charged with receiving the proceeds of a robbery from Haruna Rafiu, who on appeal was found guilty of stealing and not robbery as charged and his sentence reduced accordingly.

I am in complete agreement with my learned brother, SIDI DAUDA BAGE, JSC that its earlier decision having been brought to its attention via paragraph C6 of the appellant’s

 

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brief, the Court ought to have accorded it some consideration when confirming the appellant’s conviction and sentence.

Since the offence of the principal offender, Haruna Rafiu, had been reduced from robbery to stealing and his sentence reduced from 21 years to 3 years, it would amount to a miscarriage of justice for the appellant conviction for receiving robbed property and sentence of 21 years imprisonment to be allowed stand. I therefore allow the appeal in part. I abide by all the consequential orders made in the lead judgment.

AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead Judgment just delivered by my learned brother, Bage, JSC, and I agree with his reasoning and conclusion.

The Appellant and two other Accused Persons, Haruna Rafiu and Ganiyu Rafiu, were arraigned before the Ogun State High Court. Haruna Rafiu was charged with the offence of armed robbery while Ganiyu Rafiu and Appellant were charged with receiving the goods stolen by said Haruna Rafiu. The trial Court found the Appellant guilty as charged while Ganiyu Rafiu was discharged and acquitted.

The Appellant was duly convicted and sentenced to 21 years

 

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imprisonment “for the offence of receiving stolen property under Section 5 of the Robbery and Firearms (Special Provisions) Act”. They both appealed, but the Court of Appeal mitigated the sentence of Haruna Rafiu by convicting him for stealing; not armed robbery.

In the Appellant’s case, the Court of Appeal did not address its mind to its earlier decision in Haruna Rafiu’s case, and affirmed the decision of the trial Court convicting him for the offence as charged. The Appellant’s contention in this Appeal is that since it had earlier held in the Sister case of Haruna Rafiu V. State (CA/I/305/2011) that the Prosecution failed to establish the said offence of robbery under the Robbery and Firearms Act rather it was a case of stealing under the Criminal Code and convicted Haruna Rafiu for stealing, the Court of Appeal should have also mitigated his sentence since it found that the goods he was convicted for receiving were stolen under the Criminal Code and were not robbed under the said Act.

I agree entirely with the Appellant. First off, contrary to the argument of the Respondent, it is clear at page 116 of the Record that the learned counsel for the Appellant drew the

 

30

attention of the Court of Appeal to its earlier decision in Haruna Rafiu V. State, and whether or not it was the same panel of Justices that heard the earlier appeal of Haruna Rafiu, who sat over the Appellant’s appeal, it was the same Court and same Judicial Division that heard both.

It is absurd to have two contradictory decisions in two sister Appeals that share same facts. The Court of Appeal ought to have taken judicial notice of its decision in Haruna Rafiu V. Statebefore affirming the sentence imposed by the trial Court on the Appellant, particularly as the offence with which the Appellant was convicted is predicated on the offence for which Haruna Rafiu was convicted by the trial Court, which was mitigated by the Court of Appeal itself.

In the circumstances, I agree with my learned brother that the sentence imposed on the Appellant ought to be mitigated in line with the decision of the Court of Appeal in Haruna Rafiu V. State.

Thus, the appeal succeeds in part. The Appellant’s sentence is mitigated in line with the said decision of the Court of Appeal in the sister case of Haruna Rafiu V. State from 21-

 

31

years imprisonment to 3-years imprisonment, and bearing in mind that the Appellant has been in Prison custody since 2011 and has served more than three years of his sentence during the pendency of this Appeal, I order also that he be released from prison custody with immediate effect.

 

 

 

 

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Appearances:

Abdullahi Omoloye with him, Vivian Umerie
For  Appellant(s)

Dr. Olumide Ayeni (Hon. Attorney General of Ogun State) with him, J.O. Mafe, Esq. (A.DPP Office), Olutunde Abegunde, Esq. and Abdulbasit S. Abdulmalik, Esq.
For  Respondent(s)

 

Appearances

Abdullahi Omoloye with him, Vivian Umerie For Appellant

 

AND

Dr. Olumide Ayeni (Hon. Attorney General of Ogun State) with him, J.O. Mafe, Esq. (A.DDPP Office), Olutunde Abegunde, Esq. and Abdulbasit S. Abdulmalik, Esq. For Respondent

 

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